Lea County Water Co. v. Reeves , 43 N.M. 221 ( 1939 )

We have carefully considered the motion for rehearing, waiving the defect that said motion is not supported by a separate brief — such argument as there is being incorporated in the motion. We find that the motion is without merit and should be denied.

The first thing to be noted is that the movant does not challenge the correctness of the controlling principles set forth in the opinion and has not a word to say in criticism thereof.

His complaint is that the opinion is contrary to the theory adopted by both the plaintiff and defendant and the lower court which tried the cause. If this were true, it would present a situation of considerable gravity. But the movant is mistaken.

The only thing in the motion which causes us any concern is the statement in paragraph 6 of the motion as follows: "That in the lower court the plaintiff admitted liability and it was largely upon this admission and agreement by the appellant that the amount of damages would be determined by the jury that the temporary injunction was continued against the appellee, and at no time throughout the trial of this case did the appellant object to the theory presented by appellee and adopted by the court, and the only objection raised by the motion to set aside the verdict being that the verdict rendered by the jury was excessive and was not substantiated by competent evidence for damages in excess of Fifty Dollars ($50.00)."

Of course, all we have to go by is the record. We do not find anything in the record to support the assertion in the motion that there was an "admission and agreement of appellant" that it was liable for any damages.

To the contrary, plaintiff denied liability.

It will be helpful in appraising the situation to give here a brief re-statement of the case. Plaintiff, the Lea County Water Company, being the grantee of a right of way 30 feet wide through lands which the defendant had leased from the state, brought suit for an injunction to restrain defendant from interfering with the exercise of the privileges accorded to it under the grant of the right of way, stating in the complaint that the defendant Reeves had demanded a large sum of money from the plaintiff, and that it could not enter upon the land and that defendant would prevent it from doing so unless his demands were met. This was followed by the allegation: "That defendants demands are unreasonable and extortionate, and made without any right on his part." (Emphasis ours.) This is a clear denial of any liability. The defendant filed an answer which challenged the right of the plaintiff to an injunction but these challenges need not be considered because the court decided in plaintiff's favor as to such matters and the defendant did not cross-appeal or otherwise present for review any decisions of the trial court against him. There was contained in the answer further matter under the caption "Answer By Way of New Matter." This we take it is the cause of action asserted by the defendant upon which he sought to recover damages. The third paragraph contains the following: "That as a result of the temporary restraining order entered in this cause, the plaintiff has entered upon the property of the defendant, torn up the surface and laid pipe; that a reasonable value of such injury and damage is 25¢ per rod."

The plaintiff filed a reply, the material portion of which is as follows: "Plaintiff denies that the act of plaintiff in laying, operating and maintaining such pipe line will cause irreparable injury to the defendant; denies that such action on its part will cause him any injury or damage." (Emphasis ours.) And further: "It denies that it has damaged defendant as is alleged in Paragraph Three of the Answer By Way of New Matter in the sum of .25¢ per rod or in any sum." (Emphasis ours.)

So far as the record shows, the plaintiff never abandoned these disclaimers of liability or its denial that defendant was damaged to any extent.

We do not overlook the recital of the court reporter at the conclusion of the evidence: "The Court thereupon instructed the jury orally, by agreement of the parties as follows:" This we take it is a recital of a waiver of the requirement that instructions shall be in writing "unless written instructions be waived by the parties." We do not attach any further significance to it.

But it has been suggested off the record that the attorney for the plaintiff admitted liability in open court and consented to instruction on measure of damages and that an additional bill of exceptions or certificate of the district judge would so show.

It is readily discernible from the brief in chief of appellant (plaintiff below) that it admitted that it was liable to the defendant in damages if the evidence was sufficient to establish that plaintiff "in laying, maintaining, operating and removing said pipe line" caused "injury to any improvements or livestock lawfully upon said premises" (of defendant). It is also apparently conceded that it would have been liable to defendant for damages flowing from "negligent or willful destruction" of any kind in addition to injury to "improvements or livestock", but it asserts that no such issue was presented.

If defendant entertained the view that plaintiff had made admissions in the course of the trial which served to expand the liability referred to in the last foregoing paragraph it was his duty to call our attention to it in his answer brief, and if so advised suggest certiorari for diminution of the record.

The certificate of the district judge in settling the bill of exceptions recites that plaintiff gave due and proper notice of the bill of exceptions to be settled, signed and sealed, and "there being no objections thereto on the part of the defendant in this cause" it was therefore settled as containing "all the record. * * *" etc.

It is also to be noticed that as the case was tried the defendant resisted the application of the plaintiff for an injunction and prayed: "That plaintiff take nothing by his complaint and that the temporary Restraining Order entered in this cause be vacated, set aside and held for naught; that judgment be entered for the defendant and against the plaintiff for the costs of this action and such other and further relief as to the Court may seem equitable and just; or in the alternative to grant the defendant damages in the reasonable amount of 25¢ per rod for the right of way and such other and further relief as to this Court may seem equitable and just." (Emphasis ours.)

Thus it appears that defendant was virtually a plaintiff by way of cross-action under its "Answer By Way of New Matter." The case was tried by the court sitting without a jury in the ordinary sense, the court having said in the order continuing in force the order restraining the defendant from interfering with plaintiff's exercise of its right of way: "And that the issue of damages pleaded by defendant in his Cross-Complaint should be referred to a Jury, such Jury to act in an advisory capacity." (Emphasis ours.)

It would seem that if defendant (plaintiff in the cross-complaint) prevailing on the damage issue desired to support the judgment with recitals that his adversary had admitted a liability not disclosed in its pleadings, he should have procured from the court such recitals, either in the judgment or in findings of fact or conclusions of law, as would establish such admissions. None such appear in the record.

With these several opportunities to challenge the sufficiency of the record to reflect the happenings at the trial thus presented to defendant and unavailed of, it seems too late on the motion for rehearing to become involved in an interpretation of the extent and meaning of remarks of counsel which do not appear in the bill of exceptions presented.

It is frequently said that it is desirable that there be an end to litigation and that parties should not be encouraged or permitted to present their contentions piece-meal.

For the reasons stated, the motion for rehearing is denied, and it is so ordered.

ZINN, SADLER, and MABRY, JJ., concur.